Open Access News

Here are some comments on the settlement from the press and blogosphere.

From Andrew Albanese at Library Journal:

...On a conference call this morning [10/28/08], the parties said that there remained a strong difference of opinion over the copyright principles at the core of the case. “We had a major disagreement with Google, and we still do,” said Paul Aiken, executive director of the Authors Guild. “We also don’t see eye-to-eye on with publishers on book contract law,” he added, before calling the settlement the “the biggest book deal” in U.S. publishing history. Taylor said two “guideposts” helped lead his organization through a thicket of issues in the suit. “Authors like their books to be read,” he noted, “and like they like a nice royalty check.” ... 

$45 million of [Google's $125 million] will be used to resolve claims for those whose books have been digitized—roughly $60 a book to authors....

[T]he “snippet”—the short glimpses of in-copyright book content initially offered by Google—will be replaced by a “preview” function, offering up to 20 percent of the book, including entire pages....

From Andrew Albanese in a second article for Library Journal:

...As with any class action suit, don’t expect the final results to come quickly. The settlement must still be approved by a federal judge—and as the recent Tasini settlement shows that may be no slam dunk. Further, as one attorney told LJ on background, executing the nuts and bolts of the deal—creating the registry, setting up the subscription plan, and especially disbursing Google’s payment to authors and publishers—will provide no shortage of challenges to all parties. “There will be objectors, there always are,” the attorney stated. “This is going to be incredibly complex.” The settlement could even see another lawsuit filed to seeking stop it....

From Kirk Biglione at Medialoper:

The Winners

• Google: It’s hard to overstate how important this agreement is for Google. Google has essentially acquired the digital rights to the long tail. At least the portion of the long tail that’s locked up in out of print books. That’s a VERY long tail. Google has mastered the art of turning arcane search phrases into money. In the future they’ll have a lot more content to monetize. Content that no other search engine will have access to. That’s a huge competitive advantage.
• The Rightsholders: Authors and publishers will benefit immediately as they allocate the funds from the initial settlement, and over time as they collect revenue generated from out of print works. In the vast majority of cases, these out of print works would have never generated any additional income. I’ve already heard some grumbling that publishers gave too much away in this deal, but it’s hard to see how that can be the case. Google has basically created an entirely new revenue stream that publishers can use to profit on books that would otherwise not have generated a cent.
• Libraries: The libraries that participate in the digitization program will get to keep control over their archives. Equally important, libraries will have digital access to the archives of other libraries. The academic community as a whole will benefit in ways that we can’t yet imagine.
• The Public: The public gets easy access to millions of rare and out of print works.

The Losers

• Amazon: Amazon’s 190,000 Kindle titles look puny compared to the millions of books Google now has access to. Granted many of those Kindle titles make up the big head of consumer demand, as opposed to the long tail. Still, Google now has the ability to monetize millions of books Amazon can’t, if for no other reason because they’re out of print. What’s more, under the new agreement Google has the right to sell printed copies of those books via print on demand. And I have a sneaking suspicion that Google still has a few more surprises in store for us. Android may turn out to be more than just a mobile phone platform....
• Fair Use Advocates: There are many (myself included) who believed Google had a strong fair use argument to support their scanning efforts. It was hoped that a Google court victory would reaffirm those rights. By settling out of court Google avoided the issue entirely. Clearly Google has some long term goals for this content that would not have fallen under Fair Use. In the end Google was better off striking a deal with the rightsholders. Also, it’s been noted that by avoiding this issue entirely Google may have effectively locked out any future competition.

From Dan Cohen at DanCohen.org:

Finally, and perhaps most interesting and surprising to those of us in the digital humanities, is an all-too-brief mention of computational access to these millions of books:

In addition to the institutional subscriptions and the free public access terminals, the agreement also creates opportunities for researchers to study the millions of volumes in the Book Search index. Academics will be able to apply through an institution to run computational queries through the index without actually reading individual books.

From Paul Courant at Au Courant:

...First, and foremost, the settlement continues to allow the libraries to retain control of digital copies of works that Google has scanned in connection with the digitization projects....Moreover, we will be able to make research uses of our own collections....

Second, the settlement provides a mechanism that will make these collections widely available. Many, including me, would have been delighted if the outcome of the lawsuit had been a ringing affirmation of the fair use rights that Google had asserted as a defense. (My inexpert opinion is that Google’s position would and should have prevailed.) But even a win for Google would have left the libraries unable to have full use of their digitized collections of in-copyright materials on behalf of their own campuses or the broader public....

The settlement is not perfect, of course. It is reminiscent, however, of the original promise of the Google Book project: what once looked impossible or impossibly distant now looks possible in a relatively short period of time. Faculty, students, and other readers will be able to browse the collections of the world ‘s great libraries from their desks and from their breakfast tables. That’s pretty cool.

From James Grimmelmann at The Laboratorium:

...The result of the settlement will be to give Google a license to keep on doing what it’s doing, while allowing the authors to use their now-sharpened knives to sue anyone else who tries to do the same. At that point, of course, Google would be delighted for the authors to succeed, since it keeps the competition at bay. The settlement may also be bad for other search engines in another respect: the authors will claim that it undermines any claim of fair use in indexing books and making them searchable. Look, they’ll say, Google struck a deal to pay for its uses. That proves there’s a functioning market for these rights, and you should have to pay up, too. I happen to disagree, and this brings me to my second reaction:

You can’t strike a deal like this without court approval. That matters, because even if this settlement is approved, there is still no functioning “market” for these uses of copyrighted works. The issue is that this is a class-action settlement requiring judicial approval to bind all authors. It’s practically impossible for anyone else to take advantage of Google’s terms without filing suit to obtain a similar class-binding order. Individual license negotiation — the route that Google considered and rejected when it started the project — is utterly infeasible. Since voluntary negotiation can’t produce the result one needs to do comprehensive indexing, there’s still no market for it, and this settlement therefore shouldn’t prejudice future fair use claims by search engines....

In addition, there’s an antitrust issue with the proposed settlement....

It’s urgent that these concerns be placed in front of the court. I would argue that a necessary first step would be modifying the proposed settlement to offer any search engine equal ability to participate on the same terms as Google, with no prejudice to their ability to negotiate better terms if they can. Other modifications to prevent adverse fair use and antitrust consequences may also be necessary.

From Adam Hodgkin at Exact Editions:

...I wonder whether there is not an element of a 'winner's curse' about to descend on Google. Some parts of the settlement outline a fantastically complicated and ingenious business model for our future access to digital books. Very specific mechanisms for the pricing of books and the regulation of access, access to content within books, and access from within institutions to digital resources. If you read the stuff about 'Pricing Bins' and 'Pricing Algorithms' (pp49-50) you will get a good flavour of the extraordinarily detailed prescriptions.

A lot of this setup and this detail really needs to be established by innovation, by experiment and by markets, not by a court approved Settlement to a private dispute....

From Carolyn Kellogg in the Los Angeles Times:

...Other questions: Google will provide some full-access terminals at public libraries for free, but is it incentivizing multiple terminals as a paid service? If publishers opt out of the entire service, will they be protecting their intellectual property, or making a grave mistake? Will this kind of electronic book replace previous ebooks? Will the Google process of scanning and keywording existing bound books (which makes them look nice and bookish on the screen, with visible page textures and the occasional slightly sideways scan) be used for new books, or will they get digital files from publishers? And if that happens, will the electronic versions begin to look less like books and more like text on a screen, changing the way books are designed? Will small presses have a voice in the shaping of the registry, or will it be dominated by corporate players? And, with Google centralizing and, as they said on the call, "tracking" so much of this information, should we be thinking about privacy -- about who knows what about what we read? ...

From Lawrence Lessig at Lessig.org:

IMHO, this is a good deal that could be the basis for something really fantastic. The Authors Guild and the American Association of Publishers have settled for terms that will assure greater access to these materials than would have been the case had Google prevailed. Under the agreement, 20% of any work not opting out will be available freely; full access can be purchased for a fee. That secures more access for this class of out-of-print but presumptively-under-copyright works than Google was initially proposing. And as this constitutes up to 75% of the books in the libraries to be scanned, that is hugely important and good....

It is also good news that the settlement does not presume to answer the question about what "fair use" would have allowed....That leaves "fair use" as it is, and gives the spread of knowledge more that it would have had....

The hard question for the registry is how far they will go to support the range of business models that authors and publishers might have. E.g., Yale Press "Books Unbound" and Bloomsbury Academic both have Creative Commons licensed authors. Will the registry enable that fact to be recognized? Indeed, though the comment was made by someone from the plaintiffs' side that it would be "perverse" for authors to choose free licensing, it is perfectly plausible that an author would choose to make his or her work available freely electronically, but contract with one commercial publisher to deal with selling the physical book, or licensing rights commercially. That, again, is the Bloomsbury Academic business model....

But key to the good in the agreement is that we don't have to trust the nonprofit [registry] to do good here. Google has committed both to making the data it can control (not private data about telephone numbers and contact info, but public data about copyright registration, terms, etc.) nonexclusively available, and more importantly, downloadable by anyone who wants to build a competing and complementary database....

The biggest loser in this whole battle is the Orphan Works legislation....

From Wendy Seltzer at Seltzer.org:

...I worry about the effects on competition — Google’s high settlement payments are barriers to entry by anyone else. Though it’s plausible no one had the resources or spine to compete with Google regardless, a judicial determination that the use was fair would have enabled more competition in parallel and distinct library offerings. Now, Google cements its advantage in yet another field. (And of course, with the circularity of “effect on the market” testing, makes it harder for someone else to claim fair use.)

From Sherwin Siy at Public Knowledge:

...Depending on how you saw the merits of the case, and how confident you were in the court reaching the right decision, that can be good or bad. On the one hand, we don’t have a federal court saying that scanning books is a per se fair use; on the other hand, we don’t have a court saying that scanning is per se infringement, either.

This does mean that the financial and legal might of Google is no longer going to be aligned with libraries and archives that may wish to provide digital services that are technologically similar to Google’s efforts. This will mean that further fair use fights for digital libraries start closer to square one than they would have otherwise....

One of the interesting things about the settlement is how it draws the distinction between books that are in-print and out-of-print....This is an important distinction for practical matters of accessing works, but one not so explicitly present in copyright statutes....As a practical matter, it seems much more reasonable to make a copy of a work if there’s no way for me to obtain it from a bookstore. Yet this might not save me from being found an infringer under fair use, given a sufficiently litigious plaintiff and a sufficiently unsympathetic court. After all, even if there are no other copies of the book available, there’s a potential market in licensing the right to make a copy of the book.

Which is why it’s refreshing that this distinction is drawn at all in the agreement, and in what will be available to users. This sort of arrangement can be cited as a positive feature of licensing and the power of contract—the ability to draw distinctions that matter to the parties that the law doesn’t recognize.  Of course, there are distinct drawbacks to contract, too. Contract is a two-way street, where each party gives up something of value to the other. But that means that contract isn’t a town square or a commons; the interests of those not party to the contract are often ignored....

From David Sohn at the Center for Democracy and Technology:

If there’s a downside here, it is that the path Google has pursued here will not be easy for others to follow. Google’s scanning and display of excerpts of out-of-print books will rely not on fair use, but rather on what amounts to a broadly binding license derived from the class action settlement. The settlement states clearly that authors and publishers are free to strike deals with other companies that may want to offer some kind of search tool or online access capability for their books. But any new would-be new entrant in this market would either have to seek out its own set of licenses with a vast number of authors and publishers, or proceed based on fair use and expose itself to the same kind of lawsuit that Google faced. Because Google did not litigate the fair use question through to the end, it didn’t blaze a fair use trail that others could follow. Naturally, that’s just fine with the publishing industry, which rejects the idea that what Google was doing could have qualified as fair use. But it creates a considerable challenge for anyone eyeing the creation of some type of new indexing, search, or analogous service.

Indeed, there is an argument that the settlement actually may increase the legal danger of relying on fair use in this kind of context. One of the key factors in any fair use determination is what impact the use in question may have on the rights holder’s potential market. With this settlement, the parties aim to create a market in which book searching generates various types of revenues. That is not a bad thing. But it could make it harder for a newcomer to argue that a feature or service that delivers similar functionality would not affect the rights holder’s opportunities for commercially exploiting their works....

From Jack Stripling at Inside Higher Ed:

...Patricia Schroeder, president and chief operating officer of the Association of American Publishers, one of the plaintiffs in the suit, said both parties thought that resolving the litigation was more important than fighting out some of the larger — and lingering — legal questions about copyright in the digital age.  “We could have all fallen on our swords dueling to the last drop of blood over what is fair use,” said Schroeder....

Siva Vaidhyanathan, an associate professor of media studies and law at the University of Virginia, said the book registry will improve scholarship by clarifying who owns the rights to works. That said, Vaidhanathan suggested that the settlement fell short of what many saw as the promise of the legal challenge.

“When this whole project started four years ago, there were a lot of people declaring Google was striking a major blow for fair use and freer content, and this settlement I think shows there was a bit of hyperbole attached to those claims. Clearly neither Google nor the publishers wanted to roll the dice on that question,” said Vaidhyanathan, author of the forthcoming book The Googlization of Everything....

Peter Petre, an author, said the compensation arrangement outlined in the agreement is similar to the arrangement that the American Society for Composers, Authors and Publishers offers to the music industry. ASCAP distributes royalties to musicians when their works are broadcast or performed.

“What makes me most excited about this deal is not the $60 — it will buy a round of drinks. [But] this agreement creates the writers’ equivalent of ASCAP; that gives me hope, and it makes me feel secure about online displays of my work,” said Petre, treasurer of the Authors Guild, a copyright advocacy group for authors that joined the suit....

Laine Farley, interim executive director of the California Digital Library at the University of California System, said it’s still unclear whether universities that supplied books for digitization will be given free or reduced cost subscriptions....

From TechDirt:

...Authors and publishers will allow books to go online, but it locks Google in to a specific business model that might not be the most reasonable and, most importantly, it does not answer the legal question concerning the overall legality of book scanning. Pretty much any way you look at it, Google caved here -- and this is unfortunate for a variety of reasons.

Two years ago, there was a story in the NY Times about how Google's legal department saw all of these lawsuits against the company as a way to stand up on principle and make better law. Specifically, the company positioned itself as being willing to fight certain lawsuits on principle in order to get precedent setting rulings on the books in support of openness, fair use, safe harbors and many other important issues. The company suggested that, rather than settle, it would fight these lawsuits knowing that it alone, with its big war chest of money, could fight some of these battles that tiny startups could never afford.

It may not be surprising, but it's safe to say those days are long gone....

Not surprisingly, authors and publishers sued Google over this, and went around claiming how awful it was -- even though it was really not all that different than creating a much better card catalog for books. The purpose was to help people find more books that were useful, rather than to break any sort of copyright. And, in fact, studies showed that books that showed up in Google's search improved sales. In other words, it should have been a win-win situation all around. But, like so many content providers, authors and publishers falsely overvalue the content and undervalue services that make that content more valuable....

So, it's quite upsetting to see Google cave on this. The settlement does not establish any sort of precedent on the legality of creating such an index of books, and, if anything pushes things in the other direction, saying that authors and publishers now have the right to determine what innovations there can be when it comes to archiving and indexing works of content....From a short-term business perspective this might make sense, but from a long-term business perspective (and wider cultural perspective) it's terrible.

It will only encourage more lawsuits against Google for trying to innovate, as more and more people hope that Google will settle and throw some cash their way. Furthermore, it greatly diminishes the incentives for making books more useful, and that's damaging to our cultural heritage....

From the University of California, University of Michigan, and Stanford University in a joint statement:

The University of California, University of Michigan, and Stanford University announce today their joint support for the outstanding public benefits made possible through the proposed settlement agreement...by Google...and plaintiffs....

"It will now be possible, even easy, for anyone to access these great collections from anywhere in the United States," said University of Michigan’s Paul N. Courant, University Librarian and Harold T. Shapiro Collegiate Professor of Public Policy. “This is an extraordinary accomplishment.” ...

"Millions of books are held in our libraries as a public trust," said Daniel Greenstein, Vice Provost at the University of California. "This settlement will help provide broad access to them as well as other public benefits, and it also promises to promote innovation in scholarship. For these reasons, UC is pleased to have given input along with Universities of Michigan and Stanford in support of the public good, and we look forward to playing a continuing role by contributing UC library volumes to the development of this rich online resource." ...

“The settlement promises to change profoundly the level of access that may be afforded to the printed cultural record, so much of which is presently available to those who are able to visit one of the world’s great libraries, Michael Keller continued. “The democratic impulses – the access to knowledge – are simply too compelling to ignore....

Among the important benefits to higher education are:

• Free full text access at public libraries around the country
• Free preview and ability to either find the book at a local library or through a consumer purchase.
• A first-ever database of both in-copyright and out-of-copyright (public domain) works on which scholars can conduct advanced research (known as the “the research corpus”). For example, a corpus of this sort will allow scholars in the field of comparative linguistics to conduct specialized large scale analysis of language, looking for trends over time and expanding our understanding of language and culture.
• Enabling the sharing of public domain works among scholars, students and institutions. Not only will scholars and students at other universities be able to read these online, but this will make it possible to provide large numbers of texts to individuals wishing to perform research;
• Institutional subscriptions providing access to in-copyright, out-of-print books;
• Working copies of partner libraries' contributed works for searching and web services complementary to Google's.
• Accommodated services for persons with print disabilities – making it possible for persons with print disabilities to view or have text read with the use of reader technology;
• Digital copies of works digitized by Google provided to the partner libraries for long term preservation purposes. This is important because, as university libraries, we are tasked by the public to be repositories of human knowledge and information....